Harris v. Hyundai Motor Manufacturing Alabama, LLC, No. 2:2019cv00919 - Document 67 (M.D. Ala. 2021)
Court Description: OPINION AND ORDER: On 12/23/2020, the United States Magistrate Judge entered an order granting the motion for a protective order filed by defendant Hyundai Motor Manufacturing Alabama, LLC. The company claimed that a document given to the counsel for plaintiff Elrick Harris by Elena Jurca, formerly a paralegal at Hyundai, was protected by privilege. Hyundai sought to force Harris to turn over all information related to the document and to refrain from deposing Jurca. This matter is now before the court on Harris's objection to the magistrate judge's order pursuant to FRCP 72(a). As the court explained on the record during the status conference on 3/15/2021, Hyundai must produce additional evidence to support its claim of privil ege. Therefore, the court will allow Hyundai additional time to offer such evidence and will provide Harris with an opportunity to respond. It is ORDERED that defendant Hyundai Motor Manufacturing Alabama, LLC has until 5:00 p.m. on 3/24/2021, to fil e additional evidence, with supporting argument, as to its claim of privilege. If plaintiff Elrick Harris wishes to respond, he may file a response by 5:00 p.m. on 3/31/2021. Signed by Honorable Judge Myron H. Thompson on 3/15/2021. (dmn, )
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Harris v. Hyundai Motor Manufacturing Alabama, LLC Doc. 67 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION ELRICK HARRIS, Plaintiff, v. HYUNDAI MOTOR MANUFACTURING ALABAMA, LLC, Defendant. ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:19cv919-MHT (WO) OPINION AND ORDER On December 23, 2020, the United States Magistrate Judge entered protective an order order filed granting by Manufacturing Alabama, LLC. the motion defendant Hyundai for a Motor The company claimed that a document given to the counsel for plaintiff Elrick Harris by Elena Jurca, formerly protected by privilege. a paralegal at Hyundai, was Hyundai sought to force Harris to turn over all information related to the document and to refrain from deposing Jurca. This matter is now before the court on Harris’s objection to the magistrate judge’s order pursuant to Federal Rule of Civil Procedure Dockets.Justia.com 72(a). As the court explained on the record during the status conference on March 15, 2021, Hyundai must produce additional evidence to support its claim of privilege. Therefore, the court will allow Hyundai additional time to offer such evidence and will provide Harris with an opportunity to respond. I. This dispute Hyundai’s legal employees who company. arose BACKGROUND over department had filed a document that EEOC produced features complaints data by about against the The parties disagree about how to characterize this document: Harris describes it as a list of employees the company planned to track and eventually fire, while Hyundai says that it was merely a way for the company to internally assess complaints that might lead to litigation. The document was given to Harris’s counsel by Elena Jurca, who Hyundai’s was legal formerly employed department. 2 as When a paralegal Harris’s in counsel notified Hyundai of his receipt of the document and intent to depose Jurca, Hyundai objected, claiming that the information contained in the document was protected by privilege. turn over the Harris’s counsel disagreed and refused to document, and the company subsequently filed a motion for a protective order. The United States Magistrate Judge granted Hyundai’s motion, concluding that both the document and Jurca’s intended testimony privilege as are information protected prepared by in work-product anticipation of litigation and containing attorneys’ mental impressions. Harris judge’s timely filed an objection order under Federal Rule to of the Civil magistrate Procedure 72(a), requesting that the court set aside the order and allow him to use the document and depose Jurca. II. A district STANDARD OF REVIEW court reviews objections to non-dispositive orders by magistrate judges under Rule 72(a) of the Federal Rules of Civil Procedure. 3 The court “must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” “Clear review.” Fed. R. Civ. P. 72(a). error is a highly deferential standard of Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1350 (11th Cir. 2005). A finding is clearly erroneous when, although it may have some support, “the reviewing court on the entire evidence is left with the definite and committed.” firm Id. conviction that a mistake has been A finding “is contrary to law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Malibu Media, LLC v. Doe, 923 F. Supp. 2d 1339, 1347 (M.D. Fla. 2013) (Howard, J.). III. DISCUSSION Hyundai’s motion for a protective order rests on the company’s claim that the document Jurca produced to Harris’s counsel, her testimony regarding that document, and any communications relating to that document are all protected by both attorney-client 4 and work-product privilege. Questions of privilege relating to claims raised under federal law, as in this case, are governed by the principles of the common law “as interpreted by United States experience.” courts in the light of reason and Fed. Rule Evid. 501; see also Hancock v. Hobbs, 967 F.2d 462, 466 (11th Cir. 1992). The party invoking either attorney-client or work-product privilege has the burden of proving that it applies. See Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1189 (11th Cir. 2013). The burden of sustaining a claim of privilege is a heavy one, because privileges are “in derogation of the search for truth” and should be neither “lightly created nor expansively construed.” U.S. 683, 710 (1974). assertions” are not United States v. Nixon, 418 “[M]ere conclusory or ipse dixit enough to meet the burden. Bridgewater v. Carnival Corp., 286 F.R.D. 636, 639 (S.D. Fla. 2011) (McAliley, M.J.). The party claiming the privilege must provide the court with “underlying facts demonstrating through the affidavit existence or of otherwise. 5 the privilege,” Id. A either failure to provide proof as to the claim of privilege will cause the claim to fail. Id. The magistrate judge erred in finding that Hyundai did not need to provide evidence to support its claim of privilege because “a member of Defendant’s legal team already produced the document to Plaintiff’s counsel.” Order (Doc. 45) at 3. The mere fact that the opposing party already possesses the document at issue does not relieve the party claiming privilege of the burden to substantiate its claims. cases in which a party This is clearly demonstrated in has inadvertently document it claims is privileged. produced a Courts considering such cases still begin their analyses with the question of whether the party has offered sufficient evidence to meet its burden, requiring assertions of privilege. more than conclusory See, e.g., United States ex rel. Schaengold v. Mem’l Health, Inc., No. 4:11cv58, 2014 WL 5767042, at *3-4 (S.D. Ga. Nov. 5, 2014) (Edenfield, J.); Preferred Care Partners Holding Corp. v. Humana, 6 Inc., 258 F.R.D. 684, 699 (S.D. Fla. 2009) (Simonton, M.J.). Hyundai’s unsupported claims are clearly insufficient to establish that the document and Jurca’s testimony are privileged. While Hyundai’s briefing frequently reiterated the importance of privilege, it did little to establish that any privileges actually information at issue in this case. apply to the Indeed, at times the company simply offered a blanket assertion that “[t]he information Plaintiff’s counsel currently possesses from his ex parte contact with Ms. Jurca is covered by the privilege,” without even specifying which privilege it was referencing. Motion for Protective Order (Doc. 30) at 2. The descriptions that the magistrate judge relied on in finding that the information here is privileged were similarly undetailed. The order cites Hyundai’s explanation of the document as “the legal department’s internal assessment of complaints that could relate to former, current, or future litigation,” Order (Doc. 45) 7 at 1, but at no point has the company done anything to substantiate this characterization of the document. As the magistrate judge acknowledged, the company offered neither an affidavit by someone familiar with the document nor a detailed description of the document and its purposes to back up its claim of privilege. Indeed, it has offered no evidence at all. The court cannot find, based on only these vague explanations of what the document is and why it is confidential, that the document is protected by either attorney-client or work-product privilege. See Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003) (finding no privilege where appellants “did not present evidence regarding who, if anyone, received the memoranda other than [the recipients] stated did with recipients], the memoranda what once [the stated received, or whether [the author and stated recipients] understood the memoranda to be confidential”). Hyundai has not offered evidence to show, or attempted to explain, who ordered that the document be created, who participated in its 8 drafting, or to whom it was ultimately disclosed. The company has not even established the purpose for which the document was created and used. Hyundai’s frequent references to the fact that Jurca was a paralegal employed not a by sufficient the company’s replacement for legal department are such evidence. It is well-established that a court cannot assume that a communication is privileged merely because of the involvement of lawyers. See In re Grand Jury Matter No. 91-01386, 969 F.2d 995, 997 (11th Cir. 1992). This is particularly relevant in the case of in-house counsel, who are often “involved in all facets of the enterprises for which they work” and who may thus engage in a variety advice. of activities outside of offering legal In re Vioxx Products Liability Litigation, 501 F. Supp. 2d 789, 797 (E.D. La. 2007) (Fallon, J.). The involvement of a lawyer alone is not enough for a communication to be privileged--there are a variety of other necessary elements. For attorney-client privilege to attach, the relevant communication must be made with a 9 client, in confidence, and for the purpose of seeking or providing legal Schaltenbrand, assistance. 930 F.2d See 1554, 1562 United (11th States Cir. v. 1991). Communications regarding business or personal matters, or which are shared with those outside the attorney-client relationship, are not protected. Similarly, work-product privilege materials shields only those prepared in anticipation of litigation, and the protection applies differently to materials that reveal attorneys’ mental processes and those that do not. 329 U.S. 495, 511-13 (1947). its burden to offer See Hickman v. Taylor, Hyundai has failed to meet evidence that the relevant communications meet these elements, and the court will thus deny its motion for a protective order.1 1. The court declines to review the document or Jurca’s testimony in camera at this time. Review would be inappropriate on such a thin showing of privilege, shifting to the court a burden that Hyundai should bear itself. See United States v. DaVita, Inc., 301 F.R.D. 676, 681 (N.D. Ga. 2014) (Anand, M.J.). In camera review “does not provide an adequate or suitable substitute” to evidence supporting a claim of privilege. Bridgewater, 286 F.R.D. at 639. It is proper “only after the burdened party has submitted detailed affidavits and other 10 The former Fifth Circuit warned that those who fail to make any “attempt to demonstrate in any specific way that any particular documents [fall] within the ambit of the privilege” should not expect the “grace” of being given another opportunity to supplement the record. United States v. Davis, 636 F.2d 1028, 1044 n.20 (5th Cir. Unit important court A Feb. interests will allow 1981).2 However, privilege Hyundai serves the recognizing to protect, opportunity to appropriate evidence for its claim of privilege. the the offer If the company is able to meet its burden to establish that privilege applies, the court will revisit Harris’s additional objections to the protective order. evidence” to justify its claim of privilege, evidence which is totally absent here. CSX Transp., Inc. v. Admiral Ins. Co., No. 93-132–CIV–J–10, 1995 WL 855421, at *5 (M.D. Fla. July 20, 1995) (Snyder, M.J.). 2. In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. 11 * * * Accordingly, it is ORDERED that defendant Hyundai Motor Manufacturing Alabama, LLC has until 5:00 p.m. on March 24, 2021, to file additional evidence, with supporting argument, as to its claim of privilege. If plaintiff Elrick Harris wishes to respond, he may file a response by 5:00 p.m. on March 31, 2021. DONE, this the 15th day of March, 2021. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE 12
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